Berry v. Van Ru Credit
Filing
44
MEMORANDUM DECISION AND ORDER granting 32 Motion to Amend Complaint: Plaintiff must file his amended complaint on or before 7/6/16; finding as moot 28 Motion for Summary Judgment; trial date and all trial-related deadlines are vacated; Amended Pleadings due by 7/6/2016; Expert Discovery due by 8/17/2016; Motions due by 9/7/2016. Signed by Magistrate Judge Paul M. Warner on 6/27/16 (alt)
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION
DOUGLAS BERRY,
MEMORANDUM DECISION AND
ORDER
Plaintiff,
v.
Case No. 2:15-cv-150
VAN RU CREDIT,
Chief District Judge David Nuffer
Defendant.
Magistrate Judge Paul M. Warner
Chief District Judge David Nuffer referred this matter to Magistrate Judge Paul M.
Warner pursuant to 28 U.S.C. § 636(b)(1)(B).1 Before the court are (1) Douglas Berry’s
(“Plaintiff”) motion for leave to amend the complaint2 and (2) Van Ru Credit’s (“Defendant”)
motion for summary judgment.3 On June, 24, 2016, this court held a telephonic hearing on the
motions. Counsel for Plaintiff, Joshua Trigsted, participated in the telephonic hearing, as did
counsel for Defendant, Nicole Strickler. Before the hearing, the court carefully considered the
motions, memoranda, and other materials submitted by the parties. After considering the
arguments of counsel and taking the motions under advisement, the court renders the following
memorandum decision and order.
This action arises out of Defendant’s attempts to collect on Plaintiff’s student loans that
were in default. The Department of Education placed Plaintiff’s defaulted student loans with
1
See docket no. 22.
2
See docket no. 32.
3
See docket no. 28.
Defendant for collection. Plaintiff alleges that those efforts violated portions of the Fair Debt
Collection Practices Act (“FDCPA”).
Plaintiff’s Motion for Leave to File an Amended Complaint
Plaintiff’s motion for leave to amend is governed by rule 15(a)(2) of the Federal Rules of
Civil Procedure. See Fed. R. Civ. P. 15(a)(2). Under that rule, courts “should freely give leave
when justice so requires.” Id.; see also Foman v. Davis, 371 U.S. 178, 182 (1962). The decision
regarding whether to provide a party leave to amend pleadings “is within the discretion of the
trial court.” Minter v. Prime Equip. Co., 451 F.3d 1196, 1204 (10th Cir. 2006) (quotations and
citation omitted). Furthermore,
[i]n the absence of any apparent or declared reason—such as undue delay, bad faith or
dilatory motive on the part of the movant, repeated failure to cure deficiencies by
amendments previously allowed, undue prejudice to the opposing party by virtue of
allowance of the amendment, futility of amendment, etc.—the leave sought should, as the
rules require, be “freely given.”
Foman, 371 U.S. at 182 (quoting Fed. R. Civ. P. 15(a)). “The purpose of the Rule is to provide
litigants ‘the maximum opportunity for each claim to be decided on its merits rather than on
procedural niceties.’” Minter, 451 F.3d at 1204 (quoting Hardin v. Manitowoc-Forsythe Corp.,
691 F.2d 449, 456 (10th Cir. 1982)).
As noted by the Tenth Circuit, the “most important” factor in determining whether to
grant a motion to amend the pleadings “is whether the amendment would prejudice the
nonmoving party.” Id. at 1207. “Courts typically find prejudice only when the amendment
unfairly affects the defendants in terms of preparing their defense to the amendment.” Id. at
1208 (quotations and citation omitted). “Most often, this occurs when the amended claims arise
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out of a subject matter different from what was set forth in the complaint and raise significant
new factual issues.” Id.
Defendant argues that Plaintiff unduly delayed in seeking leave to amend. Specifically,
Defendant contends that Plaintiff unduly delayed by waiting at least four months after receiving
all requested collection recordings and at least five months after the original deadline for
amending pleadings expired. However, this court is not persuaded by Defendant’s argument.
While Plaintiff could have sought leave to amend immediately after receiving the requested
recordings, the court does not believe that this delay was undue or inexcusable. Plaintiff did seek
leave to amend within two hours after this court granted his motion to amend the scheduling
order, which extended the deadline for amending pleadings to February 5, 2016.4
Defendant also asserts that permitting Plaintiff to amend his complaint would be unduly
prejudicial. The court is not likewise persuaded by this argument. Although Defendant is likely
to experience some inconvenience, even prejudice, from Plaintiff’s amended complaint, the court
does not believe that any such prejudice is undue. As stated above, courts typically find undue
prejudice when the amendment unfairly affects the defendants in terms of preparing a defense to
the amendment, like when the new claims are based on subject matter different from the
allegations in the original complaint and set forth new facts. See id. However, that is not the
case here. While the proposed amended complaint alleges additional facts, it does not raise
significant new factual issues nor does it set forth completely new causes of action. The four
new paragraphs in Plaintiff’s proposed amended complaint arise from the same factual
circumstances and allege violations of various subsections of the FDCPA.
4
See docket nos. 29, 30, and 32.
3
While this court appreciates Defendant’s position, given the very liberal standard of rule
15(a), this court concludes that Plaintiff ought to be allowed an opportunity to amend his
complaint. Thus, Plaintiff’s motion is granted. The court notes that it is in the interest of judicial
economy to hear all of Plaintiff’s claims against Defendant in one lawsuit. Furthermore,
Defendant may retake Plaintiff’s deposition on the amended complaint at Plaintiff’s expense.
The parties are instructed to contact the court if they cannot agree on a mutually convenient date
and/or time for Plaintiff’s deposition and the court will set a date. Plaintiff’s deposition (along
with any additional fact discovery) must occur on or before August 3, 2016.
Based on the foregoing, this court GRANTS Plaintiff’s motion for leave to file an
amended complaint. Plaintiff must file his amended complaint on or before July 6, 2016.
Defendant’s Motion for Summary Judgment
Because this court has now granted Plaintiff’s motion for leave to file an amended
complaint, Defendant’s motion for summary judgment is rendered MOOT. That said, should
Defendant successfully challenge the instant order permitting Plaintiff to file an amended
complaint, Defendant may then refile its motion for summary judgment for the court’s
consideration.
Second Amended Scheduling Order
The procedural posture of this case necessitates the issuance of a new scheduling order.
Accordingly, the Amended Scheduling Order is amended as follows:
(1)
Deadline to amend pleadings is July 6, 2016.
(2)
Fact discovery shall be completed by August 3, 2016.
(3)
Expert discovery shall be completed by August 17, 2016.
4
(4)
Dispositive motion deadline is September 7, 2016.
The August 29, 2016 trial date and all trial-related deadlines are VACATED. If
necessary, the parties shall jointly contact the court to reschedule a date for trial within twentydays after the court rules on any dispositive motions.
IT IS SO ORDERED.
DATED this 27th day of June, 2016.
BY THE COURT:
________________________________
PAUL M. WARNER
United States Magistrate Judge
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